Exhibit
4.1


 




 


 





THIRD AMENDED AND RESTATED REGISTRATION RIGHTS


AGREEMENT


 


by and among


 


AFFORDABLE RESIDENTIAL COMMUNITIES INC.


 


and


 


The parties listed on Exhibit A, Exhibit B,
Exhibit C and Exhibit D hereto


 


 












 


Dated as of February 18, 2004


 




 





 

















 


TABLE OF CONTENTS


 


	
  1.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Shelf Registration
  Statements

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Shelf Registration of
  Warrants

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Shelf Registration
  of Common Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Requests for Registration

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Registration Statement
  Form

  	
   

  
	
   

  	
   

  	
  (c)

  	
  [Reserved]

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Priority on Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Limits on Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (f)

  	
  Restrictions on
  Demand Registrations

  	
   

  
	
   

  	
   

  	
  (g)

  	
  Pre-emption of
  Demand Registration

  	
   

  
	
   

  	
   

  	
  (h)

  	
  Selection of Underwriters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Piggyback Registrations

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Right to
  Piggyback

  	
   

  
	
   

  	
   

  	
  (b)

  	
  [Reserved]

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Priority on Primary
  Registrations

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Priority on
  Secondary Registrations

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Expiration
  of Partnership Unit Holder Piggyback Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Holdback
  Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Registration
  Procedures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Registration
  Expenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Indemnification

  	
   

  
						



 


i

















 


	
  9.

  	
   

  	
  Participation
  in Underwritten Registrations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Rule 144
  Reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Other Registration Rights

  	
   

  
	
   

  	
   

  	
  (b)

  	
  No Inconsistent Agreements

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Remedies

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Amendments
  and Waivers

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Successors
  and Assigns

  	
   

  
	
   

  	
   

  	
  (f)

  	
  Severability

  	
   

  
	
   

  	
   

  	
  (g)

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
  (h)

  	
  Descriptive
  Headings

  	
   

  
	
   

  	
   

  	
  (i)

  	
  Recapitalizations,
  Exchanges Affecting the Registrable Securities

  	
   

  
	
   

  	
   

  	
  (j)

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
  (k)

  	
  Third Party Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Subscribers

  	
   

  
	
  Exhibit B

  	
   

  	
  Original
  Investors

  	
   

  
	
  Exhibit C

  	
   

  	
  Reorganization
  Shareholders

  	
   

  
	
  Exhibit D

  	
   

  	
  Partnership
  Unit Holders

  	
   

  



 


ii

















 


THIRD AMENDED AND RESTATED REGISTRATION RIGHTS

AGREEMENT


 


THIS
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated as of February 18, 2004 is by and among Affordable Residential
Communities Inc., a Maryland corporation (the “Company”) and the parties
listed on Exhibit A (the “Subscribers”), Exhibit B (the “Original
Investors”), Exhibit C (the “Reorganization Shareholders”)
and Exhibit D (the “Partnership Unit Holders”) hereto, as amended
from time to time.  Capitalized terms
used but not otherwise defined herein have the meanings set forth in
Section 1 hereof.


 


WHEREAS,
the Company and the Original Investors entered into a subscription and stock purchase
agreement, dated as of September 30, 1998, pursuant to which the Company
agreed to issue and sell, and the Original Investors agreed to purchase, shares
of Common Stock (the “1998 Subscription Agreement”);


 


WHEREAS,
in connection with the execution of the 1998 Subscription Agreement, the
Company and the Original Investors executed a Registration Rights Agreement,
dated as of September 30, 1998 (the “Original Agreement”);


 


WHEREAS,
the Company and the Subscribers entered into a subscription and stock purchase
agreement, dated as of August 9, 2000 (as amended, the “2000
Subscription Agreement”) pursuant to which the Company agreed to issue and
sell, and the Subscribers agreed to purchase, shares of Common Stock;


 


WHEREAS,
concurrently with the execution of the 2000 Subscription Agreement, the Company
and the Subscribers amended and restated the Original Agreement (as amended and
restated, the “First Amended and Restated Registration Rights Agreement”)
to modify certain of its terms and add Capital ARC Holdings, LLC f/k/a UBS
Capital ARC Holdings, LLC (“UBS”) and The Travelers Indemnity Company (“Travelers”)
as parties thereto;


 


WHEREAS,
the Company and certain of its affiliates entered into an Agreement and Plan of
Reorganization, dated as of April 6, 2002 (as may be amended, the “Reorganization
Agreement”) which provided for certain reorganization transactions
involving the Company and certain of its affiliates (collectively, the “Reorganization”);


 

















 


WHEREAS,
in connection with the Reorganization (i) the Company issued additional shares
of Common Stock which were distributed to the Reorganization Shareholders, and
(ii) ARC IV issued Partnership Units to the Partnership Unit Holders, which
Partnership Units are redeemable in exchange for cash or, at the Company’s
election, shares of Common Stock;


 


WHEREAS,
in connection with the Reorganization the Company and the Subscribers amended
and restated the First Amended and Restated Registration Rights Agreement (as
amended and restated, the “Second Amended and Restated Registration Rights
Agreement”) to modify certain of its terms and add the Reorganization
Shareholders and the Partnership Unit Holders as parties thereto;


 


WHEREAS,
the Company proposes to effect an initial public offering (the “IPO”) of
shares of Common Stock;


 


WHEREAS,
in connection with the IPO the Company and the holders of a majority of the
Registrable Securities desire to amend and restate the Second Amended and
Restated Registration Rights Agreement to modify certain of its terms;


 


WHEREAS,
the Second Amended and Restated Registration Rights Agreement provides that
such agreement may be amended only upon the written consent of the Company and
the holders of a majority of the Registrable Securities under the Second
Amended and Restated Registration Rights Agreement; and


 


WHEREAS,
this Agreement has been executed by the Company and the holders of a majority
of the Registrable Securities under the Second Amended and Restated
Registration Rights Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:


 


1.                                       Definitions. 
As used herein, the following terms shall have the following meanings:


 


2

















 


“Aggregate Offering Price” means an amount equal to the product
of (i) the Average Closing Price and (ii) the aggregate number of Registrable
Securities held by a Demand Party in respect of which such demand for
registration is being made.


 


“ARC LP” means Affordable Residential Communities LP, a Delaware
limited partnership.


 


“ARC LP Partnership Agreement” means the First Amended and
Restated Agreement of Limited Partnership of ARC LP,  dated as of February 11, 2004, as amended from time to time.


 


“Average Closing Price” means, with respect to any Registrable
Security, the average of the closing sale prices of such Registrable Security
as reported on a national securities exchange or quoted on The Nasdaq Stock
Market during the Valuation Period.


 


“Business Day” means any calendar day which is not a Saturday,
Sunday or a day on which banks in the State of New York are generally closed
for regular business.


 


“Common Stock” means the common stock, $0.01 par value per
share, of the Company.


 


“Demand Party” means any Holder or Holders that, either
individually or in the aggregate with all other Holders with whom or on whose
behalf it is acting to demand registration, holds not less than 9% of the class
of Registrable Securities in respect of which such demand for registration is
being made, provided, however, that in no event shall any
Partnership Unit Holder (a) comprise all or part of any Demand Party hereunder
or (b) otherwise have any right, either alone or with any other Holder or
Holders, to request registration pursuant to Section 3(a)(i) of this
Agreement.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, or any successor statute.


 


“Holder” means the Subscribers, the Original Investors, the
Reorganization Shareholders, the Partnership Unit Holders and any transferee
which is or becomes the beneficial owner of Registrable Securities.  For purposes of determining the number of
Registrable Securities held by a Holder, for purposes of this Agreement but not
for any


 


3

















 


other
purpose, any holder of record of a Warrant shall be deemed to be a Holder of
the number of shares of Common Stock underlying such Warrants.


 


“Nassau” means, collectively, Nassau Capital Partners II, L.P.,
Nassau Capital Funds L.P. and NAS Partners I, L.L.C.


 


“Partnership Unit” shall have the meaning assigned to such term
in the ARC LP Partnership Agreement.


 


“Partnership Unit Holders” means the Person listed on Exhibit
D hereto.


 


“Person” means an individual, corporation, partnership, trust,
joint venture, limited liability company, unincorporated organization or other
legal entity or a government or any agency or political subdivision thereof.


 


“Qualified Public Offering” means the completion of the sale of
shares of Common Stock, whether by the Company and/or for the account of one or
more shareholders of the Company, pursuant to an effective registration
statement under the Securities Act (other than a special purpose registration
statement such as an S-8 or an S-4) in which the aggregate gross proceeds of
such sale, together with the aggregate gross proceeds of any such underwritten
public offerings previously completed, equal or exceed $100,000,000, provided
that after the completion of such sale the shares of Common Stock are listed on
a national securities exchange or are authorized for quotation on The Nasdaq
Stock Market.


 


“Registrable Securities” means (i) shares of Common Stock issued
(A) to the Original Investors from time to time pursuant to the 1998
Subscription Agreement, (B) to the Subscribers from time to time pursuant to
the 2000 Subscription Agreement, (C) upon exercise of the Warrants, (D) upon
completion of the transactions contemplated by the Reorganization Agreement
(including any such shares distributed to any member of ARC Holdings Limited
Liability Company upon its liquidation) but not including any shares issued or
issuable pursuant to any management incentive plan and (E) upon redemption of
any Partnership Unit issued by ARC LP to a Partnership Unit Holder upon
completion of the transactions contemplated by the Reorganization Agreement,
(ii) any shares of stock of the Company or any successor corporation issued or
issuable in respect of the Common Stock referred to in clause (i) above,
whether by way of a split of interests or dividends or in connection with a
combination of such Common Stock, recapitalization, merger, consolidation or
other reorganization or otherwise, and (iii) Warrants; provided, however,


4

















 


that
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) they shall
have been distributed to the public pursuant to Rule 144 (or any successor
provisions) under the Securities Act, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification under the Securities Act
or any state securities or blue sky law then in force, (iv) they shall have
ceased to be outstanding, or (v) solely with respect to the shares of
Common Stock covered by clause (i)(E) above, the “shelf” registration
statement with respect to such shares contemplated by Section 8.8 of the
ARC LP Partnership Agreement shall have become effective under the Securities
Act in accordance with the provisions of such Section 8.8, after which
time the securities covered by clause (i)(E) above shall no longer be
Registrable Securities (except as otherwise provided in Section 4(e)).


 


“Registration” means any registration of the securities of the
Company under the Securities Act (including without limitation, any Demand
Registration or Piggyback Registration) pursuant to the terms of this
Agreement.


 


“Registration Expenses” means all expenses incurred or incident
to the Company’s performance of or compliance with this Agreement, including
without limitation all registration and filing fees (including any such fees
paid or payable to the National Association of Securities Dealers, Inc., any
stock exchange or The Nasdaq Stock Market), fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company and all
independent certified public accountants (including the costs of any
accountants’ “comfort letters”), underwriters (excluding underwriting discounts
and commissions with respect to any Registrable Securities) and other Persons
retained by the Company.


 


“Reorganization Shareholders” means the Persons listed on Exhibit
C hereto.


 


“Rule 144” means Rule 144 under the Securities Act (or any
similar rule then in force).


 


“SEC” means the Securities and Exchange Commission.


 


5

















 


“Securities Act” means the Securities Act of 1933, as amended,
or any successor statute.


 


“Shareholders” means, collectively, the Subscribers, the
Original Investors and the Reorganization Shareholders.


 


“THL” means, collectively, Thomas H. Lee Charitable Investments,
Thomas H. Lee Foreign Fund IV-B, L.P., Thomas H. Lee Equity Fund IV, L.P.,
Thomas H. Lee Foreign Fund IV, L.P. and Thomas H. Lee Investors Limited
Partnership and all shareholders affiliated with Thomas H. Lee Partners.


 


“Valuation Period” means the thirty (30) consecutive trading
days during which the applicable Registrable Security is traded on a national
securities exchange or quoted on The Nasdaq Stock Market ending on the calender
day immediately prior to the date a Demand Party requests a Demand
Registration.


 


“Violation” means any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus,
preliminary prospectus or any amendment or supplement thereto, in light of the
circumstances under which they were made) not misleading.


 


“Warrants” means the warrants to purchase an aggregate of
723,627 shares of Common Stock granted to the Original Investors prior to the
date of the First Amended and Restated Registration Rights Agreement.


 


2.                                       Shelf Registration Statements.


 


(a)                                  Shelf Registration of Warrants.  As promptly as practicable following the
date when the Company first becomes eligible for use of a registration
statement on Form S-3 of the SEC (or any similar short form registration
statement which is a successor to Form S-3) the Company shall file with the SEC
a registration statement on Form S-3 (or any successor form) (together with the
prospectus included therein, the “Warrant Shelf Registration Statement”)
pursuant to Rule 415 of the Securities Act in order to register with the SEC
the resale, from time to time, by the Holders thereof, of all of the Warrants
constituting Registrable Securities (including all shares of Common Stock


 


6

















 


issuable upon exercise of the Warrants).  The Company shall use its reasonable best
efforts to keep the Warrant Shelf Registration Statement effective in order to
permit the prospectus forming a part thereof to be usable by the Holders of the
Warrants for the sale of the Warrants and, upon their sale, to cover (if
permitted by applicable law and by the SEC) the issuance of shares of Common
Stock upon any exercise thereof, until all of the Warrants (including all
shares of Common Stock issuable upon exercise of the Warrants) registered
thereunder have been distributed (or issued in the case of the Common Stock
underlying the Warrants) as contemplated thereby, but in any event, with
respect to the Warrants, not later than the fourth anniversary of the date the
Warrant Shelf Registration Statement is declared effective by the SEC.  The foregoing notwithstanding, the Company
shall have the right in its sole discretion, based on any valid business
purpose (including, without limitation, to avoid the disclosure of any material
non-public information that the Company is not otherwise obligated to
disclose), to suspend the use of the Warrant Shelf Registration Statement for a
reasonable length of time (a “Warrant Shelf Delay Period”) and from time
to time; provided that the aggregate number of days in all Warrant Shelf
Delay Periods occurring in any period of twelve consecutive months shall not
exceed 90 days.  The Company shall
provide written notice to each Holder of Warrants covered by the Warrant Shelf
Registration Statement of the beginning and the end of each Warrant Shelf Delay
Period and such Holders shall cease all disposition efforts pursuant to the
Warrant Shelf Registration Statement with respect to all Warrants held by them
immediately upon receipt of notice of the beginning of any Warrant Shelf Delay
Period and shall maintain in confidence the fact that such notice has been
provided by the Company.  Other than as
set forth in this paragraph (a), the Holders of Warrants shall not have any
registration rights with respect to the Warrants (or the Common Stock
underlying such Warrants) under this Agreement.


 


(b)                                 Shelf Registration of Common Stock.  As promptly as practicable following the
date when the Company first becomes eligible for use of a registration
statement on Form S-3 of the SEC (or any similar short form registration
statement which is a successor to Form S-3) the Company shall file with the SEC
a registration statement on Form S-3 (or any successor form) (together with the
prospectus included therein, the “Common Stock Shelf Registration Statement”)
pursuant to Rule 415 of the Securities Act in order to register with the SEC
the resale, from time to time, by THL, UBS and Nassau of the Common Stock held
by each of them.  The Company shall
provide piggyback registration rights, in accordance with Section 4
hereof, to all other Shareholders who hold, at the time of the initial filing
of the Common Stock Shelf Registration Statement, Registrable Securities
constituting greater than 1% of the outstanding shares of Common


 


7

















 


Stock. 
The Company shall use its reasonable best efforts to cause the Common
Stock Shelf Registration Statement to be declared effective as soon thereafter
as is practicable.  The Company shall
use its reasonable best efforts to keep the Common Stock Shelf Registration
effective in order to permit the prospectus forming a part thereof to be usable
by the Shareholders named therein for the sale of the Common Stock held by
them, until all of the Common Stock registered thereunder has been distributed
as contemplated thereby, but in any event not later than the fourth anniversary
of the date the Common Stock Shelf Registration Statement is declared effective
by the SEC.  The foregoing
notwithstanding, the Company shall have the right in its sole discretion, based
on any valid business purpose (including, without limitation, to avoid the
disclosure of any material non-public information that the Company is not
otherwise obligated to disclose), to suspend the use of the Common Stock Shelf
Registration Statement for a reasonable length of time (a “Common Stock
Shelf Delay Period”) and from time to time; provided that the
aggregate number of days in all Common Stock Shelf Delay Periods occurring in
any period of twelve consecutive months shall not exceed 90 days.  The Company shall provide written notice to
each Shareholder named in the Common Stock Shelf Registration Statement of the
beginning and the end of each Common Stock Shelf Delay Period, and each such
Shareholder shall cease all disposition efforts pursuant to the Common Stock
Shelf Registration Statement with respect to all Common Stock held by it
immediately upon receipt of notice of the beginning of any Common Stock Shelf
Delay Period and shall maintain in confidence the fact that such notice has
been provided by the Company.


 


3.                                       Demand Registrations.


 


(a)                                  Requests for Registration.


 


(i)                                     At
any time and from time to time after the closing of a Qualified Public Offering,
a Demand Party may request registration, whether underwritten or otherwise,
under the Securities Act of all or part of such Demand Party’s Registrable
Securities (other than Warrants and the Common Stock underlying such Warrants)
in an amount equal to not less than the lesser of (A) 25% of the total number
of Registrable Securities held by each Holder (each of Nassau and THL shall be
deemed to be one Holder for purposes of this clause (A)) comprising such
Demand Party of the class in respect of which such demand for registration is
being made and (B) $75,000,000 in Aggregate Offering Price of Registrable
Securities.  Each such request for a
registration shall specify


 


8

















 


the approximate number and class
of Registrable Securities requested to be registered and the anticipated per
share price range for such offering.


 


(ii)                                  Within
ten (10) days after receipt of any such request for a registration, the Company
will give written notice (a “Demand Notice”) of such requested
registration (including the number of Registrable Securities included and the
possible intended methods of disposition thereof) to all other Holders of
Registrable Securities, if any (including, in the case of a Demand Registration
involving Common Stock, all Partnership Unit Holders for purposes of this
Section 3(a)(ii) but subject to Section 4(e) hereof and all
applicable restrictions and limitations on the redemption of Partnership Units
set forth in the ARC LP Partnership Agreement, in order to afford such Holders
the opportunity to participate in such Demand Registration through a redemption
of Partnership Units in exchange for shares of Common Stock to be sold in the
related offering), and will include (subject to the provisions of this
Agreement) in such registration all Registrable Securities of the same class as
the securities being registered with respect to which the Company has received
written requests from any other Holders for inclusion therein within 20 days
after the receipt of the Demand Notice, provided, however, that
(A) if such Demand Registration involves an underwritten offering, all
Holders of Registrable Securities requesting to be included in such
registration must sell their Registrable Securities to the underwriters on the
same terms and conditions as apply to the Demand Party, and each such Holder
(including Partnership Unit Holders who request to be included in such
registration) shall, if requested by the underwriters, enter into a customary
holdback agreement with respect to such Holder’s Registrable Securities as
contemplated by Section 5(a) hereof, and (B) it shall be a condition to
the participation by any Partnership Unit Holder in any such Demand
Registration that no provision of the ARC LP Partnership Agreement shall
prohibit or restrict the redemption by such Partnership Unit Holder of any
Partnership Units as to which such Partnership Unit Holder has made a request
hereunder for inclusion in such Demand Registration and that (1) in the case of
an underwritten offering, such Partnership Unit Holder shall have delivered to
ARC LP a notice of redemption, together with the certificates evidencing the
Partnership Units to be converted into the Registrable Securities to be
included in such offering (the “Redemption Notice Package”) not less
than five (5) Business Days prior to the closing date of such offering, and (2)
in the case of any other offering, such Partnership Unit Holder shall have
delivered to ARC LP a Redemption Notice


 


9

















 


Package a reasonable time prior
to the proposed sale of such Holder’s Registrable Securities in such offering,
as determined by the Company.


 


(iii)                               All
registrations requested pursuant to this Section 3(a) are referred to
herein as “Demand Registrations.”


 


(b)                                 Registration Statement Form.  Demand Registrations shall be on such
appropriate registration form of the SEC (i) as shall be selected by the
Company and as shall be reasonably acceptable to the Holders of 51% of the
Registrable Securities requested to be registered and (ii) as shall permit the
disposition of such Demand Party’s Registrable Securities in accordance with
the intended method or methods of disposition specified in their request for
such registration. If, in connection with any Demand Registration which is
proposed by the Company to be on Form S-3 or any similar short form
registration statement which is a successor to Form S-3, the managing
underwriters, if any, shall advise the Company in writing that in their opinion
the use of another permitted form is of material importance to the success of
the offering, then such Demand Registration shall be on such other permitted
form.


 


(c)                                  [Reserved] 


 


(d)                                 Priority on Demand Registrations.  If a Demand Registration is an underwritten
offering and the managing underwriters advise in writing that in their opinion
the number of Registrable Securities requested to be included in such offering
exceeds the number of Registrable Securities which can be sold therein without
materially and adversely affecting the marketability of the offering, the
amount of Registrable Securities to be sold pursuant to such registration shall
be allocated pro rata among the
Holders of Registrable Securities desiring to participate in such registration
on the basis of the amount of such Registrable Securities requested to be
registered by such Holders.


 


(e)                                  Limits on Demand Registrations.  The Holders of Registrable Securities shall
not be entitled to request more than one (1) Demand Registration during any six-month
period.


 


(f)                                    Restrictions on Demand Registrations.  Notwithstanding anything to the contrary
contained herein:


 


10

















 


(i)                                     the
Company shall not be obligated to effect (A) any Demand Registration within six
months after the effective date of the Company’s initial public offering or any
previous Demand Registration or (B) any Demand Registration that would cause
the Company to violate Section 5(b) of this Agreement;


 


(ii)                                  the
Company shall not be required to effect a registration of Registrable
Securities pursuant to this Section 3 if it shall have delivered to the
Demand Party a written opinion of counsel to the Company of recognized national
standing reasonably acceptable to the Holders to the effect that the
disposition of the Registrable Securities with respect to which such demand has
been made shall not require registration under the Securities Act or any state
securities or blue sky law then in force; and


 


(iii)                               the
Company may postpone or withdraw for a reasonable period, not to exceed ninety
(90) days (subject to extension for up to 45 additional days by a vote of a
majority of the members of the Company’s Board of Directors), the filing or the
effectiveness of a registration statement for a Demand Registration if based on
the good faith judgment of a majority of the members of the Company’s Board of
Directors and on advice of counsel, such postponement or withdrawal is
necessary in order to avoid premature disclosure of:  (1) a matter that the Board of Directors has determined would not
be in the best interest of the Company to be disclosed at such time or (2) a
material fact the disclosure of which would have a material adverse effect on
any proposal or plan by the Company or any of its subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other significant transaction; provided,
however, that in no event shall the Company withdraw a registration
statement after such registration statement has been declared effective; provided
further, however, that, to the extent applicable, such
postponement or withdrawal period shall terminate upon the completion or
abandonment of the acquisition of assets, merger, consolidation, tender offer
or other significant transaction to which such postponement or withdrawal
relates.  The Company shall be entitled
to one (1) postponement or withdrawal (including any extension thereof) in any
12 month period regardless of the number of days in such postponement or
withdrawal.  The Company shall provide
prompt written notice to the Holders of Registrable Securities initiating the
request for such Demand Registration of (x) any postponement or withdrawal of
the filing or


 


11

















 


effectiveness of a registration
statement pursuant to this paragraph, (y) the Company’s decision to file or
seek effectiveness of such registration statement following such postponement
or withdrawal and (z) the effectiveness of such registration statement.  If the Company so elects to postpone or
withdraw a registration statement, such registration shall not count as one of
the permitted Demand Registrations of the Holders who requested such
registration.


 


(g)                                 Pre-emption of Demand Registration.  Notwithstanding anything to the contrary
contained herein, if at any time a Holder or Holders shall request a Demand
Registration pursuant to this Section 3, the Company may elect at that
time to effect an underwritten primary registration if, based on the good faith
judgment of a majority of the Company’s Board of Directors, it would be in the
best interests of the Company to access the public market to raise equity
capital.  If the Company elects to
effect a primary registration after receiving such a request for a Demand
Registration, the Company will give prompt written notice (and in any event
within thirty (30) days after receiving such a request for a Demand
Registration) to all Holders of Registrable Securities of the class to be
registered of its intention to effect such a registration and shall afford such
Holders rights to Piggyback Registrations contained in Section 4 hereof,
except that if the managing underwriters of such offering advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without materially and adversely affecting the marketability of such offering,
the provisions of Section 4(d) hereof shall not apply to such offering,
and instead the Company shall include in such registration the maximum number
of securities which such underwriters advise can be sold in such offering
allocated (x) first, equally (as opposed to pro
rata) among the Company, on the one hand, and the Holders as a
group, on the other hand (and reallocated among such Holders pro rata on the basis of the number of
securities requested to be registered by such Holders), until either the
Company or the Holders as a group have been allocated the full number of
securities requested to be included in such registration by the Company or the
Holders, as the case may be, (y) second, to either the Company or the Holders
as a group (and reallocated among such holders pro
rata on the basis of the number of securities requested to be
registered by such Holders), as the case may be, to the extent that such party
was not allocated the full number of its requested securities pursuant to
clause (x) above, until the Company or the Holders as a group, as the case may
be, have been allocated the full number of securities requested to be included
in such registration, and (z) third, to the holders of all other securities
requested to be included in such registration pro
rata among such holders on the basis of the number of securities
requested to be registered by such holders. 
In the event


 


12

















 


that the Company so elects to effect such a
primary registration after receiving a request for such a Demand Registration,
such registration shall not count as one of the permitted Demand Registrations
of the Holders who requested such registration.


 


(h)                                 Selection of Underwriters.  In the case of a Demand Registration for an
underwritten offering, the Holders of a majority of the Registrable Securities
to be included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, which
investment banker(s) and manager(s) will be nationally recognized.  The Company may select a
nationally-recognized co-manager to participate in the offering if the Company
is offering any securities in the offering.


 


4.                                       Piggyback Registrations.


 


(a)                                  Right to Piggyback.  Whenever the Company proposes to register any securities (the “Priority
Securities”) under the Securities Act (other than pursuant to (1) a Demand
Registration, for which “piggyback” rights are provided in Section 3
hereof, (2) the Warrant Shelf Registration Statement, (3) the Common Stock
Shelf Registration Statement (except to the extent specifically referred to in
Section 2(b) hereof), (4) a registration of the issuance by the Company,
or the resale by any holder of Partnership Units, of any securities of the
Company issued upon redemption of such Partnership Units, (5) a registration
statement on Form S-8 or Form S-4 or any similar form or (6) a registration the
primary purpose of which is to register debt securities), and a registration
form to be used in such registration may be used for the registration of
Registrable Securities of the same class (a “Piggyback Registration”),
the Company shall give prompt written notice (a “Piggyback Notice”) to
all Holders of Registrable Securities of such class (including, in the case of
a Piggyback Registration involving Common Stock, all Partnership Unit Holders
for purposes of this Section 4 but subject to Section 4(e) hereof and
all applicable restrictions and limitations on the redemption of Partnership
Units set forth in the ARC LP Partnership Agreement, in order to afford such
Holders the opportunity to participate in such Piggyback Registration through a
redemption of Partnership Units in exchange for shares of Common Stock to be
sold in the related offering) of its intention to effect such a registration.
Subject to Section 4(c) and 4(d), the Company shall include in any such
registration by it all Registrable Securities of the same class as the
securities being registered with respect to which it has received written
requests for inclusion therein from the Holders thereof within 20 days after
the receipt of the Company’s Piggyback Notice; provided, however,
that (A) if such Piggyback Registration involves an underwritten offering, all
Holders of Registrable Securities requesting to be included in such registration


 


13

















 


must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, and each such Holder (including Partnership Unit Holders who
request to be included in such registration) shall, if requested by the
underwriters, enter into a customary holdback agreement with respect to such
Holder’s Registrable Securities as contemplated by Section 5(a) hereof,
(B) if, at any time after giving written notice pursuant to this
Section 4(a) of its intention to register any Priority Securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to register
such Priority Securities, the Company shall give written notice to all Holders
of Registrable Securities and shall thereupon be relieved of its obligation to
register any Registrable Securities in connection with such registration
(without prejudice, however, to rights of Holders of Registrable Securities
under Section 3), (C) in the event of the initial public offering by the
Company of shares of Common Stock, the Company may determine, in its sole and
absolute discretion, that such registered offering shall not constitute a
Piggyback Registration for purposes of this Section 4 only, and in the
event of such a determination no Holder shall have any rights under this
Section 4 with respect to such offering, and (D) it shall be a condition to
the participation by any Partnership Unit Holder in any such Piggyback
Registration that no provision of the ARC LP Partnership Agreement shall
prohibit or restrict the redemption by such Partnership Unit Holder of any
Partnership Units as to which such Partnership Unit Holder has made a request
hereunder for inclusion in such Piggyback Registration and that (1) in the case
of an underwritten offering, such Partnership Unit Holder shall have delivered
to ARC LP a Redemption Notice Package not less than five (5) Business Days
prior to the closing date of such offering, and (2) in the case of any other
offering, such Partnership Unit Holder shall have delivered to ARC LP a
Redemption Notice Package a reasonable time prior to the proposed sale of such
Holder’s Registrable Securities in such offering, as determined by the Company.


 


(b)                                 [Reserved].


 


(c)                                  Priority on Primary Registrations.  If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without materially and adversely affecting
the marketability of such offering, the Company shall include in such
registration (i) first, all Priority Securities the Company proposes to sell,
(ii) second, the Registrable Securities pro
rata among the Holders of


 


14

















 


such Registrable Securities on the basis of
the number of such securities requested to be registered by such Holders, and
(iii) third, other securities requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of such securities requested to be
registered by such holders.


 


(d)                                 Priority on Secondary Registrations.  If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company’s
securities other than Registrable Securities, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of such offering, the Company shall include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration and the Registrable Securities requested to be
included in such registration, pro rata
among the holders of such securities on the basis of the number of such
securities requested to be registered by such holders, and (ii) second, other
securities requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of such securities requested to be
registered by such holders.


 


(e)                                  Expiration of Partnership Unit
Holder Piggyback Rights. 
Notwithstanding anything to the contrary contained herein, the
Partnership Unit Holders shall have no rights under Section 3(a)(ii) and
this Section 4 with respect to any Demand Registration or Piggyback
Registration the Demand Notice or Piggyback Notice for which was provided by
the Company on or after the date that the “shelf registration statement”
contemplated by Section 8.8 of the ARC LP Partnership Agreement has become
effective under the Securities Act in accordance with the provisions of such
Section 8.8.


 


5.                                       Holdback Agreements.


 


(a)                                  In
connection with any Demand Registration or Piggyback Registration involving an
underwritten offering, each Holder of Registrable Securities hereby agrees, at
the request of the underwriters, to enter into a customary holdback agreement
with respect to such Holder’s Registrable Securities, provided, however,
that the terms of such holdback agreement shall be no less favorable than any
holdback agreement executed by any other holders of securities of the Company
in connection with such underwritten offering. 
The Company agrees to use its reasonable best efforts to cause such
underwriters to agree in the underwriting agreement to notify in writing all
Holders of Registrable Securities who have executed a holdback agreement in
connection


 


15

















 


with such offering of any agreement by such
underwriters to release any Holder of Registrable Securities from any such
holdback agreement at least five (5) Business Days in advance of such release.


 


(b)                                 The
Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven (7) days prior to and during the 90-day
period beginning on the effective date of any underwritten Demand Registration
(except as part of such underwritten registration or pursuant to registrations
on Forms S-4 or S-8 or any successor forms), unless the underwriters managing
the registered public offering otherwise agree, and (ii) to use its reasonable
efforts to cause each holder of Registrable Securities and each other holder of
at least 5% (on a fully diluted basis) of equity securities of the Company,
respectively, or any securities convertible into or exchangeable or exercisable
for such equity securities, purchased from the Company at any time after the
date hereof (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.


 


6.                                       Registration Procedures.  Whenever the Holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:


 


(a)                                  prepare and file with the SEC a registration
statement with respect to such Registrable Securities (in the case of a Demand
Registration, no later than forty-five (45) days after the receipt of the
request for registration) and use its best efforts to cause such registration
statement to become effective as promptly as practicable after filing; provided,
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
Holders of a majority of the Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed; provided
further, that no such registration statement or prospectus or amendment
or supplement thereto shall be filed unless the Holders of Registrable
Securities to be included in such registration statement and, if the offering
is an underwritten offering, counsel to the underwriters, have had a reasonable
opportunity


 


16

















 


to provide comments thereon; provided  further, that the
Holders of the Registrable Securities shall have provided their comments
promptly following their receipt of such registration statement or prospectus
or amendment or supplement thereto;


 


(b)                                 (i) 
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective for a period of not
less than six months and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement and
(ii) use its best efforts to have such supplements or amendments declared
effective, if required, as soon as practicable after filing; provided,
that no such amendment or supplement shall be filed unless the Holders of
Registrable Securities to be included in such registration statement and, if
the offering is an underwritten offering, counsel to the underwriters, have had
a reasonable opportunity to provide comments thereon; provided  further,
that the Holders of the Registrable Securities shall have provided their
comments promptly following their receipt of such amendment or supplement;


 


(c)                                  furnish to each seller of Registrable
Securities, without charge, such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;


 


(d)                                 use its best efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process (i.e., service of process which is not limited solely to
securities law violations) in any such jurisdiction);


 


17

















 


(e)                                  promptly notify each seller of such
Registrable Securities of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, promptly prepare a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
promptly furnish to each seller of Registrable Securities, without charge,
copies of such prospectus supplement or amended prospectus;


 


(f)                                    use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange or automated
quotation system on which securities of the same class issued by the Company
are then listed and, if not so listed, use commercially reasonable efforts to
cause such Registrable Securities to be authorized for quotation on the Nasdaq
Stock Market or to be listed on a national securities exchange selected by the
Company;


 


(g)                                 provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;


 


(h)                                 enter into such customary agreements
(including underwriting agreements in customary form with customary indemnity
and contribution obligations to the underwriters) and take all such other
actions as the holders of a majority of the Registrable Securities being sold
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, effecting a stock split or a combination of shares);


 


(i)                                     make available for inspection by any seller
of Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and cause
the officers, members, advisors, employees and independent accountants of the
Company to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;


 


18

















 


(j)                                     otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earning statement
covering the period of at least twelve months beginning with the first day of
the first full calendar quarter of the Company after the effective date of the
registration statement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;


 


(k)                                  permit any Holder of Registrable Securities
which holder, in its reasonable judgment, might be deemed to be an underwriter
or a controlling person of the Company, to participate in the preparation of
such registration or comparable statement and to require the insertion therein
of material, furnished to the Company, as the case may be, in writing, which in
the reasonable judgment of such Holder and its counsel should be included;


 


(l)                                     promptly notify the selling Holders and the
underwriters, if any, of the issuance or threatened issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any securities included in such registration statement for
sale in any jurisdiction and use its reasonable best efforts promptly to either
obtain the prompt withdrawal of any such order that is issued or prevent the
issuance of any such threatened order;


 


(m)                               use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities;


 


(n)                                 obtain a “cold comfort” letter from the
independent public accountants of the Company in customary form and covering
such matters of the type customarily covered by “cold comfort” letters as the
underwriters or Holders of a majority of the Registrable Securities being sold
reasonably request;


 


(o)                                 provide an opinion of the Company’s counsel
in customary form and covering such matters of the type customarily covered by
such an opinion as the underwriters or the Holders of a majority of the
Registrable Securities being


 


19

















 


sold reasonably request and dated the date of the closing of the sale
of Registrable Securities relating thereto;


 


(p)                                 to the extent recommended by the underwriters
in any underwritten offering of Registrable Securities, cooperate with the
selling Holders and the underwriters for such offering in the marketing of the
Registrable Securities, including making its officers available to participate
in such “road show” presentations and conference calls as the underwriters may
reasonably request and making the Company’s accountants, counsel, premises,
books and records available for such purpose; and


 


(q)                                 promptly notify each Holder, and each
underwriter (A) when a registration statement or any related prospectus or any
amendment or supplement has been filed, and, with respect to a registration
statement or any amendment thereto, when the same has become effective or (B)
of any request by the SEC for amendments or supplements to the registration
statement or the related prospectus or for additional information.


 


If
any such registration or comparable statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, and if, in its sole
and exclusive judgment, such Holder is or might be deemed to be a controlling
Person of the Company, as the case may be, such Holder shall have the right to
require (i) the insertion therein of language, in form and substance satisfactory
to such Holder and presented to the Company in writing, to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company’s
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company,
as the case may be, or (ii) in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Holder; provided,
that with respect to this clause (ii) such holder shall furnish to the Company,
as applicable, an opinion of counsel to such effect, which opinion of counsel
shall be reasonably satisfactory to the Company.


 


It shall be a condition precedent to the obligation of the Company to
take any action with respect to any Registrable Securities pursuant to this
Section 6 that the Holder thereof shall furnish to the Company such
information regarding such Holder, the Registrable Securities and any other
securities of the Company held by such Holder as the 


 


20

















 


Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.


 


Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 6(e), such Holder will forthwith discontinue disposition of
Registrable Securities until such Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(e), and, if
so directed by the Company such Holder will deliver to the Company (at the
Company’s expense) all copies (including, without limitation, any and all
drafts), other than permanent file copies, then in such Holder’s possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event that the Company shall give any such
notice, the six-month period mentioned in Section 6(b) shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(e) to and including the date
when each Holder of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 6(e).


 


7.                                       Registration Expenses.


 


(a)                                  All
reasonable expenses incident to the Company’s performance of or compliance with
this Agreement, including without limitation all Registration Expenses of the
Company and the Holders, will be borne by the Company, with respect to any
registration, proposed or otherwise, of its securities; provided, however,
that notwithstanding anything to the contrary contained herein, each Holder
shall bear and pay all underwriting discounts and commissions and all transfer
taxes, if any, attributable to and/or payable in respect of any sale of
Registrable Securities by such Holder.


 


(b)                                 In
connection with each Demand Registration and each Piggyback Registration and
any registration of Warrants or other Registrable Securities hereunder, the
Company will also reimburse the Holders of Registrable Securities covered by or
proposed (pursuant to the terms of this Agreement) to be included in such
registration for the reasonable fees and disbursements of one counsel chosen by
the Holders of a majority of the Registrable Securities, regardless of whether
such Registrable Securities are ultimately included in or sold pursuant to such
registration.


 


21

















 


8.                                       Indemnification.


 


(a)                                  The
Company shall indemnify and hold harmless, to the extent permitted by law, each
Holder of Registrable Securities, its respective partners, members,
shareholders, officers and directors and each Person who controls such Holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon any Violation and shall
reimburse such Holder, partner, member, director, officer or controlling Person
for any legal or other fees or expenses reasonably incurred by such Holder,
director, officer or controlling Person in connection with the investigation or
defense of such loss, claim, damage, liability or expense, except insofar as
the same are caused by or contained in any information furnished in writing to
the Company by such Holder expressly for use in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or, if such Holder participates as an underwriter in the offering or
sale of Registrable Securities, to the extent that any such loss, claim,
damage, liability or expense arises out of such Holder’s failure to send or
give a copy of the final prospectus, as the same may be then supplemented or
amended, after the Company has furnished to such Holder a sufficient number of
copies of same, to the Person asserting the existence of a Violation at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final
prospectus.  In connection with an
underwritten offering, the Company shall indemnify and hold harmless such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of
Registrable Securities; provided, however, that the Company will
not be liable to any Person who participates as an underwriter in the offering
or sale of Registrable Securities or any other Person, if any, who controls
such underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 8(a) with respect to any preliminary prospectus
or the final prospectus as amended or supplemented, as the case may be, to the
extent that any such loss, claim, damage or liability of such underwriter or
controlling Person results from the fact that such underwriter sold Registrable
Securities to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus (including
any documents incorporated by reference therein) or of the final prospectus as
then amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if the Company has previously furnished
sufficient copies thereof to such underwriter. 
Any fees and expenses incurred by the indemnified party (including any
fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) shall be


 


22

















 


paid to the indemnified party, as incurred,
within thirty (30) days of written notice thereof to the indemnifying
party.  Any amounts advanced by the
indemnifying party to an indemnified party pursuant to this Section 8 shall
be returned to the indemnifying party if it shall be finally determined by such
a court in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the indemnifying
party.


 


(b)                                 In
connection with any registration statement in which a Holder of Registrable
Securities is participating, each such Holder will furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such registration statement or prospectus and, to the
extent permitted by law, will indemnify the Company and its respective members,
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act), as applicable, against any losses, claims,
damages, liabilities and expenses arising out of or based upon any Violation,
but only to the extent that the untrue statement or omission constituting such
Violation is contained in any information or affidavit so furnished in writing
by such Holder expressly for use in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto; provided,
that the obligation to indemnify will be individual to each Holder and will be
limited to the net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement.


 


(c)                                  Any
Person entitled to indemnification hereunder will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party’s reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be subject
to any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.


 


23

















 


(d)                                 The
indemnification provided for under this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any partner, member, officer, director or controlling Person of such
indemnified party and will survive the transfer of securities.


 


(e)                                  If
the indemnification required by this Section 8 from the indemnifying party
is unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 8:


 


(i)                                     The
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations.  The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party or indemnified
parties, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation.  The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party
in connection with the investigation or defense of such loss, claim, damage,
liability or expense.


 


(ii)                                  The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 8(e) were determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to in Section 8(e)(i).  No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.


 


(f)                                    If
indemnification is available under this Section 8, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 8 without regard to the relative fault of such indemnifying
party or indemnified party or any other equitable consideration referred to in
Section 8(e) except that no selling Holder shall


 


24

















 


be liable for any amount in excess of the net proceeds it receives in
the offering which is the subject of the indemnification proceeding.


 


(g)                                 The
obligations of the Company under this Section 8 shall be in addition to
any liability which the Company may otherwise have to the persons specified in
Section 8(a) and the obligations of the selling Holders under this
Section 8 shall be in addition to any liability which such Persons may
otherwise have to the Company.  The
remedies provided in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to an indemnified party
at law or in equity.


 


9.                                       Participation in Underwritten
Registrations.  No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no Holder of Registrable Securities
included in any underwritten registration pursuant to Section 3(a)(ii) or
Section 4 hereof shall be required to make any representations or
warranties to the Company (in connection with the registration of the Company’s
securities) or the underwriters other than representations and warranties (a)
as are ordinarily given by a seller of securities with respect to such seller’s
authority to sell, the enforceability of agreements against such seller, such
seller’s good title in such securities and the interest in such securities to
be acquired at closing by the buyer of such securities, and (b) regarding such
Holder and such Holder’s intended method of distribution; provided, further,
that no Holder of Registrable Securities included in any underwritten
registration pursuant to Section 3(a)(ii) or Section 4 hereof shall
be required to provide any indemnification or contribution agreements other
than to the same extent provided in Section 8.


 


10.                                 Rule 144 Reporting.  With a view to making available to the holders of Registrable
Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:


 


(a)                                  make and keep current public information
available, within the meaning of Rule 144 or any similar or analogous rule
promulgated under the


 


25

















 


Securities Act, at all times
after it has become subject to the reporting requirements of the Exchange Act;


 


(b)                                 file with the SEC, in a timely manner, all
reports and other documents required under the Securities Act and Exchange Act
(after it has become subject to such reporting requirements);


 


(c)                                  so long as any party hereto owns any
Registrable Securities, furnish to such Person forthwith upon request a written
statement as to its compliance with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of its most recent
annual or quarterly report; and such other reports and documents as such Person
may reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration; and


 


(d)                                 in connection with any sale, transfer or
other disposition by any Holder of any Registrable Securities pursuant to Rule
144 promulgated under the Securities Act, cooperate with such holder to
facilitate the timely preparation and delivery of certificates representing the
Registrable Securities to be sold and not bearing any Securities Act legend,
and enable certificates for such Registrable Securities to be for such number
of shares and registered in such name as the selling Holders may reasonably
request in writing no more than three (3) Business Days after any sale of
Registrable Securities; provided, that, if requested by the Company,
such Holder shall have furnished to the Company an opinion of counsel
reasonably satisfactory to the Company and the Company’s counsel that
registration of such Registrable Securities under the Securities Act is not
required.


 


11.                                 Notices.  All
notices, demands or other communications to be given or delivered under or by
reason of the provisions of this Agreement will be in writing and will be
deemed to have been given when delivered personally, mailed by certified or
registered mail, return receipt requested and postage prepaid, or the day after
sent if sent via a nationally recognized overnight courier, or upon written
confirmation if sent via facsimile to any recipient (other than Travelers, to
whom facsimile transmission shall not be a valid means of notice under this
Agreement). Such notices, demands and other communications will be sent to the
address indicated below:


 


26

















 


To the Company:


 


Affordable Residential Communities Inc.

600 Grant Street, Suite 900

Denver, Colorado  80203

Telecopy:  (303) 294-0085

Attention:  Scott L. Gesell, Esq.


 


To the Subscribers:


 


At the address or facsimile number set forth on Exhibit A hereto


 


To the Original Investors:


 


At the address or facsimile number set forth on Exhibit B hereto


 


To the Reorganization Shareholders:


 


At the address or facsimile number set forth on Exhibit C hereto


 


To the Partnership Unit Holders:


 


At the address or facsimile number set forth on Exhibit D hereto


 


In each case, with copies to each of:


 


Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York  10036

Attention:  Fred B. White, III,  Esq.

Facsimile No.:  (212) 735-2000


 


Weil, Gotshal & Manges LLP

100 Federal Street - 34th Floor

Boston, MA 02110

Attention:  James Westra, Esq.


 


27

















 


Attention:  Andrew M. Troop,
Esq.

Facsimile No.:  (617) 772-8333


 


Paul, Hastings, Janofsky & Walker LLP

75 East 55th Street

New York, New York  10022

Attention:  Frank T. Cannone, Esq.

Facsimile No.:  (212) 319-4090


 


Clifford Chance US LLP

200 Park Avenue

New York, New York  10166

Attention: Larry P. Medvinsky, Esq.

Facsimile No.:  (212) 878-8375


 


Kirkland & Ellis

Citicorp Center

153 East 53rd Street

New York, New York 10022-4675

Attention:  Kirk Radke, Esq.

Facsimile No.:  (212) 446-4900


 


or such other address or
to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party.


 


12.                                 Miscellaneous.


 


(a)                                  Other Registration Rights. The Company
shall not grant to any holders of Common Stock or other equity securities of
the Company any demand or piggyback registration rights with respect to any
such securities that have priority over the demand and piggyback registration
rights set forth in this Agreement, provided, however, that the
Company may agree to effect one or more “shelf” registrations of the Common
Stock issuable upon redemption of any Partnership Units, whether outstanding on
the Effective Date or thereafter, including the shelf registration statement
contemplated by Section 8.8 of the ARC LP Partnership Agreement.


 


28

















 


(b)                                 No Inconsistent Agreements. The
Company will not enter into any agreement which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.


 


(c)                                  Remedies. Any Person having rights under any provision
of this Agreement (including any Original Investor, Subscriber, Reorganization
Shareholder or Partnership Unit Holder) will be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in
its sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.


 


(d)                                 Amendments and Waivers. Except as
otherwise provided herein, the provisions of this Agreement may be amended or
waived only upon the prior written consent of the Company and the Holders of a
majority of the Registrable Securities (which for this purpose shall not
include the Warrants but shall include the shares of Common Stock underlying
any outstanding Warrants), provided, however, that any amendment
or waiver of any provision of this Agreement which adversely affects the rights
of any party to this Agreement shall be executed by each such party; provided
further, however, that a grant by the Company of demand and/or
piggyback registration rights that do not have priority over the demand and
piggyback registration rights granted to the Holders hereunder shall not be
deemed to “adversely affect” the rights of any party to this Agreement.


 


(e)                                  Successors and Assigns. All covenants and
agreements in this Agreement by or on behalf of any of the parties hereto will
bind and inure to the benefit of their respective heirs, legal representatives,
successors and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the provisions
of this Agreement which are for the benefit of purchasers or Holders of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent Holder of Registrable Securities.


 


(f)                                    Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law,


 


29

















 


such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Agreement.


 


(g)                                 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.


 


(h)                                 Descriptive Headings. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.


 


(i)                                     Recapitalizations, Exchanges Affecting the
Registrable Securities.  The
provisions of this Agreement shall apply, to the full extent set forth herein,
with respect to the Registrable Securities, to any and all shares of stock of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution of the Registrable Securities, by reason of
a stock dividend, stock split, stock issuance, reverse stock split,
combination, recapitalization, reclassification, merger, consolidation or otherwise.  Upon the occurrence of any of such events,
amounts hereunder shall be appropriately adjusted.


 


(j)                                     Governing Law. 
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the conflicts of law
principles thereof.


 


(k)                                  Third Party Beneficiaries.  Except with respect to the Partnership Unit
Holders and the Original Investors, this Agreement is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.


 


* 
*  *  *  *


 


30

















 


IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.


 


 


	
  THOMAS H. LEE EQUITY

  FUND IV, L.P.

  	
  THOMAS H. LEE FOREIGN

  FUND IV, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Thomas H. Lee

  	
   

  	
  By:

  	
  /s/
  Thomas H. Lee

  	
   

  
	
   

  	
  Name:

  	
  Thomas
  H. Lee

  	
   

  	
  Name:

  	
  Thomas
  H. Lee

  
	
   

  	
  Title:

  	
  Principal
  Managing

  Director

  	
   

  	
  Title:

  	
  Principal
  Managing

  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  THOMAS H. LEE CHARITABLE

  INVESTMENTS LIMITED

  PARTNERSHIP

  	
  THOMAS H. LEE INVESTORS

  LIMITED PARTNERSHIP  

  
	
   

  	
   

  	
   

  	
  By:

  	
  THL Investment Management

  Corp.,  its General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Thomas H. Lee

  	
   

  	
   

  	
   

  
	
   

  	
  Title:   General Partner

  	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Thomas H. Lee

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  General Partner

  
										



 

















 


	
  THOMAS H. LEE FOREIGN

  FUND IV-B, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  
	
   

  	
  Name: Thomas H. Lee

  
	
   

  	
  Title: 

  	
  Principal Managing

  Director

  
					



 

















 


	
  CAPITAL ARC HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael Greene

  	
   

  
	
   

  	
   

  	
  Name: Michael Greene

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Partner

  
						



 

















 


	
   

  	
  NASSAU
  CAPITAL PARTNERS II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A. Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A. Hack

  
	
   

  	
   

  	
  Title:
  Sr. Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NASSAU
  CAPITAL FUNDS L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A. Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A. Hack

  
	
   

  	
   

  	
  Title:
  Sr. Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAS
  PARTNERS I, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A. Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A. Hack

  
	
   

  	
   

  	
  Title:
  Sr. Managing Director

  



 

















 


	
  AFFORDABLE
  RESIDENTIAL COMMUNITIES INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Scott Gesell

  	
   

  
	
   

  	
  Name:
  Scott Gesell

  
	
   

  	
  Title:
  Executive Vice President

  



 

















 


Exhibit
A


 


	
  Thomas
  H. Lee Equity Fund IV, L.P.

  	
  Thomas
  H. Lee Foreign Fund IV, L.P.

  
	
  c/o
  Thomas H. Lee Company

  	
  c/o
  Thomas H. Lee Company

  
	
  75
  State Street, Suite 2600

  	
  75
  State Street, Suite 2600

  
	
  Boston,
  Massachusetts  02109

  	
  Boston,
  Massachusetts  02109

  
	
  Telecopy:  (617) 227-3514

  	
  Telecopy:  (617) 227-3514

  
	
  Attention:  Todd Abbrecht

  	
  Attention:  Todd Abbrecht

  
	
   

  	
   

  
	
  Thomas H. Lee Charitable
  Investments Limited Partnership

  	
  Thomas H. Lee Investors
  Limited Partnership

  
	
  c/o
  Thomas H. Lee Company

  	
  c/o
  Thomas H. Lee Company

  
	
  75
  State Street, Suite 2600

  	
  75
  State Street, Suite 2600

  
	
  Boston,
  Massachusetts  02109

  	
  Boston,
  Massachusetts  02109

  
	
  Telecopy:  (617) 227-3514

  	
  Telecopy:  (617) 227-3514

  
	
  Attention:  Todd Abbrecht

  	
  Attention:  Todd Abbrecht

  
	
   

  	
   

  
	
  Thomas
  H. Lee Foreign Fund IV-B, L.P.

  	
  The
  Travelers Indemnity Company

  
	
  c/o
  Thomas H. Lee Company

  	
  205
  Columbus Blvd., 9PB

  
	
  75
  State Street, Suite 2600

  	
  Hartford,
  Connecticut 06083-2030

  
	
  Boston,
  Massachusetts  02109

  	
  Attention:  

  	
  Real
  Estate Department,

  
	
  Telecopy:  (617) 227-3514

  	
   

  	
  David
  Colangelo

  
	
  Attention:  Todd Abbrecht

  	
   

  	
  Investment
  No.: 12809

  
	
   

  	
   

  
	
  Capital
  ARC Holdings, LLC

  	
   

  
	
  c/o
  UBS Capital

  	
   

  
	
  48
  Signal Road

  	
   

  
	
  Stamford,
  CT 06902

  	
   

  



 

















 


Exhibit
B


(attached)


 

















 


Exhibit C


 


	
  Nassau
  Capital Partners II, L.P.

  	
  Scott
  D. Jackson

  
	
  c/o
  Nassau Capital Funds, L.P.

  	
  185
  S. Elm Street

  
	
  22
  Chambers Street

  	
  Denver,
  CO 80246

  
	
  Princeton,
  NJ 08542

  	
   

  
	
  Attention:  Robert L. Honstein

  	
   

  
	
  Facsimile
  No.:  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  Nassau
  Capital Funds L.P.

  	
  John
  G. Sprengle

  
	
  22
  Chambers Street

  	
  1727
  E. Sunset Ridge Road

  
	
  Princeton,
  NJ 08542

  	
  Highlands
  Ranch, CO 80126

  
	
  Attention:  Robert L. Honstein

  	
   

  
	
  Facsimile
  No.:  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  NAS
  Partners I, L.L.C.

  	
  Matthew
  H. Briger

  
	
  c/o
  Nassau Capital Funds, L.P.

  	
  517
  Garfield Street

  
	
  22
  Chambers Street

  	
  Denver,
  CO 80206

  
	
  Princeton,
  NJ 08542

  	
   

  
	
  Attention:  Robert L. Honstein

  	
   

  
	
  Facsimile
  No.:  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  John
  Markham Green

  	
  Scott
  L. Gesell

  
	
  15
  East 91st Street, Apt.  10A

  	
  1685
  Muirfield Lane

  
	
  New
  York, NY 10028

  	
  Evergreen,
  CO 80439

  
	
   

  	
   

  
	
  Eugene
  Mercy, Jr.

  	
  Stratton
  R. Smith

  
	
  1111
  Park Avenue

  	
  778
  13th Street

  
	
  New
  York, NY 10128

  	
  Boulder,
  CO 80302

  



 


C-1

















 


	
  McMahon
  Investment Partnership, L.P.

  	
  R.
  Haynes Chidsey

  
	
  c/o
  T. Gordon McMahon

  	
  1435
  Wazee Street #403

  
	
  350
  E. 79th Street, Apt. 37B

  	
  Denver,
  CO 80202

  
	
  New
  York, NY 10021-9209

  	
   

  
	
   

  	
   

  
	
  Albert
  F. Hummel

  	
  Nicholas
  Campbell

  
	
  P.O.
  Box 3407

  	
  77
  Falcon Hills Drive

  
	
  Rancho
  Santa Fe, CA 92067

  	
  Highlands
  Ranch, CO 80126

  
	
   

  	
   

  
	
  Mercy
  1995 Family Trust

  	
  Scott
  Vanderhoofven

  
	
  c/o
  Eugene Mercy, Jr.

  	
  4453
  W. Hinsdale Avenue

  
	
  1111
  Park Avenue

  	
  Littleton,
  CO 80128

  
	
  New
  York, NY 10128-1234

  	
   

  



 


C-2

















 


Exhibit D


 


	
  511 Equities Corporation

  
	
  c/o Rachel Kuluva

  
	
  590 Fifth Avenue, 19th Floor

  
	
  New York, NY  10036

  
	
  Phone:  (212)
  403-2916

  
	
   

  
	
  Andrew and Elaine Pesky

  
	
  10 East 53rd Street

  
	
  New York, NY  10022

  
	
  Phone:  (212)
  889-6969

  
	
   

  
	
  ARC II Investor

  
	
  Charles A. Davis

  
	
  Marsh & McClennan Risk Capital Corp.

  
	
  20 Horseneck Lane

  
	
  Greenwich, CT  06830

  
	
   

  
	
   

  
	
  Arno P. Niemand

  
	
  777 - 15th Street

  
	
  Boulder, CO  80302

  
	
  Phone:  (303)
  938-6866

  
	
   

  
	
  Brittany Ridge Investment Partners, L.P

  
	
  c/o John J. Oros

  
	
  280 Highland Avenue

  
	
  Ridgewood, NJ 
  07450-4004

  
	
  Phone:  (201)
  445-5066

  
	
   

  
	
  Bruce V. Rauner

  
	
  GTCR Golder Rauner L.L.C.

  
	
  6100 Sears Tower

  
	
  Chicago, IL  60606

  
	
  Phone:  (847)
  256-9018

  
	
   

  
	
  Curtis S. Lane

  
	
  135 Central Park West

  
	
  New York, NY  10023

  
	
  Phone:  (212)
  887-2113

  



 


D-1

















 


	
  Daniel J. Sullivan Jr.

  
	
  141 Forest Street

  
	
  Wellesley, MA  02181

  
	
  Phone:  (617)
  237-5507

  
	
   

  
	
  David Lurie

  
	
  1050 Fifth Avenue

  
	
  New York, NY  10028

  
	
  Phone:  (212)
  427-3855

  
	
   

  
	
  David N. Roberts

  
	
  Angelo Gordon & Co.

  
	
  245 Park Avenue, 26th Floor

  
	
  New York, NY  10167

  
	
  Phone:  (212)
  692-2025

  
	
   

  
	
   

  
	
  Dean R. O’Hare

  
	
  370 Lake Road

  
	
  Far Hills, NJ  07931

  
	
   

  
	
  Deborah Roberts

  
	
  515 West End Avenue

  
	
  New York, NY  10024

  
	
  Phone:  (212)
  362-2323

  
	
   

  
	
   

  
	
  Dennis and Cynthia Suskind

  
	
  136 E. 79th St. Apt. 9

  
	
  New York, NY  10021

  
	
  Phone:  (212)
  472-9408

  
	
   

  
	
  Donald R.Gant

  
	
  Youngs Road

  
	
  New Vernon, NJ 
  07976

  
	
  Phone:  (212)
  902-6202

  
	
   

  
	
  Edgell Street Partners

  
	
  c/o James Harasimowicz

  
	
  210 Central Park South #24B

  
	
  New York, NY  10019

  
	
  Phone:  (212)
  262-9697

  



 


D-2

















 


	
  Edward Dunay

  
	
  300 East 57th St., Apt. 12D

  
	
  New York, NY  10022

  
	
  Phone:  (212)
  838-7563

  
	
   

  
	
   

  
	
  Eugene Mercy, Jr.

  
	
  1111 Park Avenue

  
	
  New York, NY  10128

  
	
  Phone:  (212)
  407-3334

  
	
   

  
	
  Farmer Family Trust

  
	
  John R. Farmer & Tawna B. Farmer

  
	
  Trustees

  
	
  2 Morrison Road

  
	
  P.O. Box 1405

  
	
  Ross, CA  94957

  
	
  Phone:  (415)
  456-3843

  
	
   

  
	
  FAWPEAS L.P.

  
	
  Alan D. & Wendy Pesky

  
	
  59 East 54th Street, Suite 42

  
	
  New York, NY  10022

  
	
  Phone:  (212)
  339-7745

  
	
   

  
	
  Fern K. Hurst

  
	
  1060 Fifth Avenue

  
	
  New York, NY  10128

  
	
   

  
	
   

  
	
  Gamco Investors, Inc.

  
	
  Mario J. Gabelli

  
	
  Gabelli Group Capital Partners, Inc.

  
	
  One Corporate Center

  
	
  Rye, NY  10580

  
	
  Phone:  (914)
  921-5145

  



 


D-3

















 


	
  Gary D. and Karen A. Rose

  
	
  Trustees for the benefit of Adam James Rose

  and Alexander Mark Rose

  
	
  24 Dryden Terrace

  
	
  Short Hills, NJ 
  07078

  
	
  Phone:  (212) 902-6114

  
	
   

  
	
  Granite Capital, L.P

  
	
  c/o Lloyd Moskowitz

  
	
  126 E. 56th Street, 25th Floor

  
	
  New York, NY  10022

  
	
  Phone:  (212)
  407-3344

  
	
   

  
	
  Grantor Trust for Dana E. Tang

  
	
  c/o Oscar Tang

  
	
  New England Investment Co.

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New York, NY  10020

  
	
  Phone:  (212)
  830-5301

  
	
   

  
	
  Grantor Trust for Kevin C. Tang

  
	
  c/o Oscar Tang

  
	
  New England Investment Co.

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New York, NY  10020

  
	
  Phone:  (212)
  830-5301

  
	
   

  
	
  Grantor Trust for Kristin A. Tang

  
	
  c/o Oscar Tang

  
	
  New England Investment Co.

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New York, NY  10020

  
	
  Phone:  (212)
  830-5301

  
	
   

  
	
  Grantor Trust for Tracy L. Tang

  
	
  c/o Oscar Tang

  
	
  New England Investment Co.

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New York, NY  10020

  
	
  Phone:  (212)
  830-5301

  



 


D-4

















 


	
  Heidi Pesky Worcester

  
	
  40 Blood Street

  
	
  Lyme, CT  06371

  
	
  Phone:  (860)
  434-6052

  
	
   

  
	
  Henry Barkhorn

  
	
  1095 Park Avenue

  
	
  New York, NY  10128

  
	
  Phone:  (212)
  313-2491

  
	
   

  
	
  Howard Silverstein

  
	
  895 Park Avenue, Apt. 9C

  
	
  New York, NY  10021

  
	
  Phone:  (212)
  902-6102

  
	
   

  
	
  Howard P. Berkowitz

  
	
  65 East 55th Street, 30th Floor

  
	
  New York, NY  10022

  
	
  Phone:  (212)
  664-0990

  
	
   

  
	
  Indian Creek Partners, LP

  
	
  c/o David C. Clapp

  
	
  Goldman Sachs & Co.

  
	
  85 Broad Street, 29th Floor

  
	
  New York, NY  10004

  
	
  Phone:  (212)
  902-6445

  
	
   

  
	
  Indosuez ARC Partners

  
	
  c/o Michael Walsh, Esq.

  
	
  666 Third Avenue

  
	
  New York, NY  10017

  
	
  Phone:  (646)
  658-2000

  
	
   

  
	
   

  
	
  J.  Russell Bellamy

  
	
  3504 Drexel Drive

  
	
  Dallas, TX  75205

  
	
  Phone:  (214)
  855-1060

  
	
   

  
	
  James E. Hunt

  
	
  1111 Park Avenue

  
	
  New York, NY 10128

  
	
  Phone: (212) 758-2800

  



 


D-5

















 


	
  Joanne D. Corzine

  
	
  25 Lenox Road

  
	
  Summit, NJ 07901

  
	
  Phone: (212) 902-8281

  
	
   

  
	
  Joel and Helen Portugal

  
	
  30 E. 72nd Street

  
	
  New York, NY 10021

  
	
  Phone: (212) 744-0930

  
	
   

  
	
   

  
	
  John G. Duffy

  
	
  415 Crestwood Avenue

  
	
  Crestwood, NY 10707

  
	
  Phone: (212) 323-8300

  
	
   

  
	
  John Markham Green

  
	
  15 East 91st Street, Apt. 10A

  
	
  New York, NY 10028

  
	
  Phone: (212) 902-5240

  
	
   

  
	
  Joseph E. Robert Jr.

  
	
  1288 Ballantrae Farm Drive

  
	
  MacLean, VA 22101

  
	
  Phone: (703) 506-0560

  
	
   

  
	
  Joseph Ellis

  
	
  Goldman Sachs

  
	
  530 East 86th Street

  
	
  New York, NY 10028

  
	
  Phone: (212) 902-6766

  
	
   

  
	
  Joseph P. and Beatrice L. Riccardo

  
	
  311 Sweetbriar Court

  
	
  Franklin Lakes, NJ 07417

  
	
   

  
	
  Judith Berkowitz

  
	
  c/o HPB Associates, L.P.

  
	
  65 East 55th Street, 30th Floor

  
	
  New York, NY 10022

  
	
  Phone: (212) 664-0990

  



 


D-6

















 


	
  Kendrick R. Wilson III

  
	
  161 Cantitoe Road

  
	
  Katonah, NY 10536

  
	
  Phone: (212) 902-8655

  
	
   

  
	
  Laura T. Traphagen

  
	
  Ha’ Penny House

  
	
  Van Beuren Road

  
	
  Morristown, NJ 07960

  
	
  Phone: (973) 455-0666

  
	
   

  
	
  Lawrence E. and Valerie C. Uhl

  
	
  1370 Old Mill Road

  
	
  San Marino, CA 91 108

  
	
   

  
	
  Lewis M. Eisenberg

  
	
  Granite Capital International Group

  
	
  126 E. 56th Street, 25th Floor

  
	
  New York, NY 10022

  
	
  Phone: (212) 407-3338

  
	
   

  
	
  Mary Kong

  
	
  375 S. End Ave #30E

  
	
  New York, NY 10280

  
	
  Phone: (212) 306-1364

  
	
   

  
	
  McMahon Investment Partners, L.P.

  
	
  c/o T. Gordon McMahon

  
	
  350 E. 79th Street, Apt. 37B

  
	
  New York, NY 10021 - 9209

  
	
  Phone: (212) 407-5277

  
	
   

  
	
  Mercy Foundation

  
	
  c/o Eugene Mercy, Jr.

  
	
  1111 Park Avenue

  
	
  New York, NY 10128-1234

  
	
  Phone: (212) 407-3334

  
	
   

  
	
  Michael Ainslie

  
	
  415 Sea Spray Avenue

  
	
  Palm Beach, FL 33480

  
	
  Phone: (203) 86 1-6635

  



 


D-7

















 


	
  Michael J. Moss

  
	
  258 Soundview Avenue

  
	
  White Plains, NY 10606

  
	
  Phone: (914) 694-5851

  
	
   

  
	
  Mobilecourt Partners I

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan & Cromwell

  
	
  125 Broad Street

  
	
  New York, NY 10004

  
	
  Phone: (212) 558-3922

  
	
   

  
	
  Mobilecourt Partners II

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan & Cromwell

  
	
  125 Broad Street

  
	
  New York, NY 10004

  
	
  Phone: (212) 558-3922

  
	
   

  
	
  Mobilecourt Partners III

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan & Cromwell

  
	
  125 Broad Street

  
	
  New York, NY 10004

  
	
  Phone: (212) 558-3922

  
	
   

  
	
   

  
	
  Oscar L. Tang

  
	
  New England Investment Co.

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New York, NY 10021

  
	
  Phone: (212) 830-5301

  
	
   

  
	
  Park Partners II

  
	
  c/o Marc Wolinsky

  
	
  Wachtell, Lipton, Rosen & Katz

  
	
  51 West 52nd Street

  
	
  New York, NY 10019

  
	
  Phone: (212) 403-1226

  



 


D-8

















 


	
  Peter L. Briger

  
	
  Fortress Investment Group

  
	
  1301 Avenue of the Americas

  
	
  42nd Floor

  
	
  New York, NY 10019

  
	
   

  
	
   

  
	
  Richard D. Reiss Jr. and Bonnie Reiss, 

  JTWROS

  
	
  100 1 Park Avenue

  
	
  New York, NY 10028

  
	
  Phone: (212) 536-9720

  
	
   

  
	
  Richard T. Pratt

  
	
  1694 South Mohawk Way

  
	
  Salt Lake City, UT 84108

  
	
   

  
	
  Richard W. & Catherine E. Herbst

  
	
  12 Gap View Road

  
	
  Short Hills, NJ 07078

  
	
  Phone: (212) 339-0160

  
	
   

  
	
  Robert Cenci

  
	
  45 Overlook Drive

  
	
  Greenwich, CT 06830

  
	
  Phone: (203) 625-9376

  
	
   

  
	
  Robert E. Mnuchin

  
	
  218 Nettleton Hollow Road

  
	
  Washington, CT 06793

  
	
  Phone: (203) 868-9466

  
	
   

  
	
  Robert J. Hurst

  
	
  Goldman Sachs & Co.

  
	
  85 Broad Street, 30th Floor

  
	
  New York, NY 10004

  
	
  Phone: (212) 902-5262

  



 


D-9

















 


	
  Robert N. Downey

  
	
  Goldman Sachs & Co.

  
	
  85 Broad Street, 2nd Floor

  
	
  New York, NY 10004

  
	
  Phone: (212) 902-6407

  
	
   

  
	
  Robert Yedid

  
	
  Pelham Avenue

  
	
  Sands Point, NY 11050

  
	
   

  
	
  Ross E. Traphagen

  
	
  Van Beuren Road

  
	
  Morristown, NJ 07960

  
	
  Phone: (407) 546-72 10

  
	
   

  
	
   

  
	
  Sally Gordon

  
	
  1080 Fifth Avenue, Apt. 14B

  
	
  New York, NY 10128

  
	
   

  
	
  Steven Malkenson

  
	
  17 West 67th Street, #9F

  
	
  New York, NY 10023

  
	
  Phone: (212) 874-6764

  
	
   

  
	
  Susan Mercy

  
	
  1111 Park Ave

  
	
  New York, NY 10128

  
	
  Phone: (212) 407-3334

  
	
   

  
	
  Tanavon Corporation

  
	
  c/o Oscar Tang

  
	
  600 Fifth Avenue, 8th Floor

  
	
  New Y ork, NY 10021

  
	
  Phone: (212) 830-5301

  
	
   

  
	
  Thomas I. Unterberg

  
	
  C.E. Unterberg, Towbin

  
	
  350 Madison Avenue, 10th Floor

  
	
  New York, NY 10017

  
	
  Phone: (212) 389-8005

  



 


D-10

















 


	
  Thomas Mendell

  
	
  J.P. Morgan Partners

  
	
  1221 Avenue of the Americas

  
	
  New York, NY 10020-0180

  
	
  Phone: (212) 899-3448

  
	
  Email: tom.mendell@chasecapital.com

  
	
   

  
	
  Thomas Rhodes

  
	
  c/o National Review

  
	
  215 Lexington Avenue, 4th Floor

  
	
  New York, NY 10016

  
	
  Phone: (212) 213-9380

  
	
   

  
	
  Todd and Gretchen Zelek

  
	
  2000 Ashbourne Drive

  
	
  S. Pasadena, CA 91030

  
	
  Phone: (213) 362-2550

  
	
   

  
	
  Todd J. Zelek

  
	
  2000 Ashbourne Drive

  
	
  S. Pasadena, CA 91030

  
	
  Phone: (213) 362-2550

  
	
   

  
	
   

  
	
  Victor Wright

  
	
  Goldman, Sachs & Co.

  
	
  One New York Plaza, 45th Floor

  
	
  New York, NY 10004

  
	
  Phone: (212) 902-0101

  
	
   

  
	
  Walter Harrison III

  
	
  Granite Capital

  
	
  126 E. 56th Street, 25th Floor

  
	
  New York, NY 10022

  
	
  Phone: (212) 407-3338

  
	
   

  
	
  Watchung Road Associates, L.P.

  
	
  Attn: Leon Cooperman

  
	
  45 Watchung Road

  
	
  Short Hills, NJ 07078

  
	
  Phone: (201) 379-6282

  



 


D-11

















 


	
  William H. Ingram and Cathy M. Brienza

  
	
  c/o Sutton Capital Associates, Inc.

  
	
  One Rockefeller Plaza, Suite 3300

  
	
  New York, NY 10020-2

  
	
  Phone: (212) 218-4351 102

  
	
   

  
	
  William Ingram

  
	
  Sutton Capital Associates, Inc.

  
	
  One Rockefeller Plaza, Suite 3300

  
	
  New York, NY 10020-2 102

  
	
  Phone: (212) 218-4351

  
	
   

  
	
  William Malkenson

  
	
  PMB #442

  
	
  4132 S. Rainbow Blvd.

  
	
  Las Vegas, NV 89103

  
	
  Phone: (702) 247-9047

  



 


D-12